Aug 9, 2008

India - Voice of the unheard

It has, indeed, been a long-drawn battle: one that started more than a decade ago, where lawmakers had to be convinced about the very existence of domestic violence.

This year, for the first time India will be represented on the panel of the United Nations’ Convention on the Elimination of Discrimination Against Women (CEDAW) — a crucial committee that extensively defines gender discrimination and sets up an agenda to end it.

But it’s really the ‘face’ of this battle — lawyer-activist Indira Jaising, the first representative — that’s the cause for all the heightened optimism. For, Jaising’s own track record is a testimony to the fight for legal rights for those who have been rendered as have-nots by the Indian legal system. The homeless, as in the Olga Tellis case; the OBCs as in the Ashok Kumar Thakur case; the victims of communal and domestic violence; of the Bhopal gas tragedy; and of sexual harassment at the workplace, as in the Rupan Deol Bajaj case.

Jaising hopes her appointment will “compel the Indian legal system to extend non-discrimination of women, in all spheres, more seriously”. “After all, we cannot send a representative to a world body to sit in judgement over the rights of women globally and continue discrimination at home,” says the senior advocate, also the first woman to be appointed judge in the Bombay High Court in 1986.

Jaising raised the bar as one of the few women to study law in 1962, after studying law at both Mumbai and Bangalore.

“Till this day, however, discrimination in the profession exists, albeit subtly. There is a tendency among judges and male colleagues to trivialise the contribution of women or patronise them. If a woman raises her voice to be heard she is ‘aggressive’. If a man does so, he is presenting his case forcefully and is admired.”

While Jaising may fret that the Supreme Court still has no women judges — “even when there are, it’s a token gesture” — and rue that the apex court has never had a woman senior law officer in all these years, the “biases” have not really held her back.

Not when she fought the Mary Roy case in 1986 for Christian women’s equal inheritance rights, the Daniel Latifi case for Muslim women’s maintenance rights after divorce and the Geetha Hariharan’s case for Hindu women’s guardianship rights. These are cases that have gone a long way in the fight against gender-specific discrimination.

It is, however, the ground-breaking Protection of Women from Domestic Violence Act, 2005 she drafted and campaigned for, that has now become the highpoint of her contribution to law.

Not only has the Act broadened the definition of ‘violence’, but it has also restored the victim’s right to reside. For Jaising, the need arose from the realisation that prosecution does not end a matter; women want shelter.

The Domestic Violence Act, 2005, perhaps, is one of the most creatively drafted laws, says Kamala Sankaran, Reader at the Faculty of Law, Delhi University. “It takes domestic violence beyond a criminal offence, and provides a civil remedy in terms of the victim’s right to reside,” says Sankaran.

But the 68-year-old Jaising now rues that this very right is in danger of being eroded by the courts.

“The SC has held that if the matrimonial home belongs to the mother-in-law, the daughter-in-law will have no right to reside, despite the definition making ownership irrelevant.”

With her appointment to the CEDAW, law experts like Sankaran hope that India will sign the optional protocol, where women can directly approach the committee with a complaint.

Much like this law then, Jaising is rather categorical in her critique of the Indian legal system.

“The Indian legal system is slow, period. We have known of women who have entered court rooms and killed a perceived rapist, such is the decay in the system. I am dealing with a case of the wife of a magistrate, who has got maintenance of Rs 55, and her case was adjourned for a year,” she says.

Having spent close to four decades in the legal profession, Jaising — who co-founded the Lawyers’ Collective in 1981 to address unmet legal needs — advocates speedy justice.

“The system responds only to those who have well-oiled lawyers and can leapfrog the system.” But then, with lawyers like Jaising, there’s hope yet.